Official Journal of the European Communities 10. 7. 1999 L 175/43

Official Journal of the European Communities10. 7. 1999 L 175/43

COUNCIL DIRECTIVE 1999/70/EC

of 28 June 1999

concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European

Community, and in particular Article 139(2) thereof,

Having regard to the proposal from the Commission,

Whereas:

(1)

Following the entry into force of the Treaty of

Amsterdam the provisions of the Agreement on social

policy annexed to the Protocol on social policy, annexed

to the Treaty establishing the European Community

have been incorporated into Articles 136 to 139 of the

Treaty establishing the European Community;

(2)

Management and labour (the social partners) may, in

accordance with Article 139(2) of the Treaty, request

jointly that agreements at Community level be imple-

mented by a Council decision on a proposal from the

Commission;

(3)

Point 7 of the Community Charter of the Fundamental

Social Rights of Workers provides, inter alia, that ‘the

completion of the internal market must lead to an

improvement in the living and working conditions of

workers in the European Community. This process must

result from an approximation of these conditions while

the improvement is being maintained, as regards in

particular forms of employment other than open-ended

contracts, such as fixed-term contracts, part-time

working, temporary work and seasonal work’;

(4)

The Council has been unable to reach a decision on the

proposal for a Directive on certain employment relation-

ships with regard to distortions of competition (

), nor

on the proposal for a Directive on certain employment

relationships with regard to working conditions (

);

(5)

The conclusions of the Essen European Council stressed

the need to take measures with a view to ‘increasing the

employment-intensiveness of growth, in particular by a

more flexible organisation of work in a way which fulfils

both the wishes of employees and the requirements of

competition’;

(6)

The Council Resolution of 9 February 1999 on the

1999 Employment Guidelines invites the social partners

at all appropriate levels to negotiate agreements to

modernise the organisation of work, including flexible

working arrangements, with the aim of making under-

takings productive and competitive and achieving the

required balance between flexibility and security;

(7)

The Commission, in accordance with Article 3(2) of the

Agreement on social policy, has consulted management

and labour on the possible direction of Community

action with regard to flexible working time and job

security;

(8)

The Commission, considering after such consultation

that Community action was desirable, once again

consulted management and labour on the substance of

the envisaged proposal in accordance with Article 3(3)

of the said Agreement;

(9)

The general cross-industry organisations, namely the

Union of Industrial and Employers' Confederations of

Europe (UNICE), the European Centre of Enterprises

with Public Participation (CEEP) and the European Trade

Union Confederation (ETUC), informed the Commission

in a joint letter dated 23 March 1998 of their desire to

initiate the procedure provided for in Article 4 of the

said Agreement; they asked the Commission, in a joint

letter, for a further period of three months; the Commis-

sion complied with this request extending the nego-

tiation period to 30 March 1999;

(10)

The said cross-industry organisations on 18 March 1999

concluded a framework agreement on fixed-term work;

they forwarded to the Commission their joint request to

implement the framework agreement by a Council

Decision on a proposal from the Commission, in

accordance with Article 4(2) of the Agreement on social

policy;

(11)

The Council, in its Resolution of 6 December 1994 on

‘certain aspects for a European Union social policy: a

contribution to economic and social convergence in the

Union’ (

), asked management and labour to make use of

the opportunities for concluding agreements, since they

are as a rule closer to social reality and to social prob-

lems;

(12)

The signatory parties, in the preamble to the framework

agreement on part-time work concluded on 6 June

1997, announced their intention to consider the need

for similar agreements relating to other forms of flexible

work;

(13)

Management and labour wished to give particular atten-

tion to fixed-term work, while at the same time indi-

cating that it was their intention to consider the need for

a similar agreement relating to temporary agency work;

(

) OJ C 224, 8.9.1990, p. 6. and OJ C 305, 5.12.1990, p. 8.

(

) OJ C 224, 8.9.1990, p. 4. (

) OJ C 368, 23.12.1994, p. 6.

Official Journal of the European Communities 10. 7. 1999L 175/44

(14)

The signatory parties wished to conclude a framework

agreement on fixed-term work setting out the general

principles and minimum requirements for fixed-term

employment contracts and employment relationships;

they have demonstrated their desire to improve the

quality of fixed-term work by ensuring the application

of the principle of non-discrimination, and to establish a

framework to prevent abuse arising from the use of

successive fixed-term employment contracts or relation-

ships;

(15)

The proper instrument for implementing the framework

agreement is a directive within the meaning of Article

249 of the Treaty; it therefore binds the Member States

as to the result to be achieved, whilst leaving them the

choice of form and methods;

(16)

In accordance with the principles of subsidiarity and

proportionality as set out in Article 5 of the Treaty, the

objectives of this Directive cannot be sufficiently

achieved by the Member States and can therefore be

better achieved by the Community; this Directive limits

itself to the minimum required for the attainment of

those objectives and does not go beyond what is neces-

sary for that purpose;

(17)

As regards terms used in the framework agreement but

not specifically defined therein, this Directive allows

Member States to define such terms in conformity with

national law or practice as is the case for other Direct-

ives on social matters using similar terms, provided that

the definitions in question respect the content of the

framework agreement;

(18)

The Commission has drafted its proposal for a Directive,

in accordance with its Communication of 14 December

1993 concerning the application of the agreement on

social policy and its Communication of 20 May 1998

on adapting and promoting the social dialogue at

Community level, taking into account the representative

status of the contracting parties, their mandate and the

legality of each clause of the framework agreement; the

contracting parties together have a sufficiently repres-

entative status;

(19)

The Commission informed the European Parliament and

the Economic and Social Committee by sending them

the text of the agreement, accompanied by its proposal

for a Directive and the explanatory memorandum, in

accordance with its communication concerning the

implementation of the Protocol on social policy;

(20)

On 6 May 1999 the European Parliament adopted a

Resolution on the framework agreement between the

social partners;

(21)

The implementation of the framework agreement contri-

butes to achieving the objectives in Article 136 of the

Treaty,

HAS ADOPTED THIS DIRECTIVE:

Article 1

The purpose of the Directive is to put into effect the frame-

work agreement on fixed-term contracts concluded on 18

March 1999 between the general cross-industry organisations

(ETUC, UNICE and CEEP) annexed hereto.

Article 2

Member States shall bring into force the laws, regulations and

administrative provisions necessary to comply with this

Directive by 10 July 1999, or shall ensure that, by that date at

the latest, management and labour have introduced the neces-

sary measures by agreement, the Member States being required

to take any necessary measures to enable them at any time to

be in a position to guarantee the results imposed by this

Directive. They shall forthwith inform the Commission thereof.

Member States may have a maximum of one more year, if

necessary, and following consultation with management and

labour, to take account of special difficulties or implementation

by a collective agreement. They shall inform the Commission

forthwith in such circumstances.

When Member States adopt the provisions referred to in the

first paragraph, these shall contain a reference to this Directive

or shall be accompanied by such reference at the time of their

official publication. The procedure for such reference shall be

adopted by the Member States.

Article 3

This Directive shall enter into force on the day of its publica-

tion in the Official Journal of the European Communities.

Article 4

This Directive is addressed to the Member States.

Done at Luxembourg, 28 June 1999.

For the Council

The President

M. NAUMANN

Official Journal of the European Communities10. 7. 1999 L 175/45

ANNEX

ETUC-UNICE-CEEP

framework agreement on fixed-term work

Preamble

This framework agreement illustrates the role that the social partners can play in the European employment strategy

agreed at the 1997 Luxembourg extra-ordinary summit and, following the framework agreement on part-time work,

represents a further contribution towards achieving a better balance between ‘flexibility in working time and security for

workers’.

The parties to this agreement recognise that contracts of an indefinite duration are, and will continue to be, the general

form of employment relationship between employers and workers. They also recognise that fixed-term employment

contracts respond, in certain circumstances, to the needs of both employers and workers.

This agreement sets out the general principles and minimum requirements relating to fixed-term work, recognising that

their detailed application needs to take account of the realities of specific national, sectoral and seasonal situations. It

illustrates the willingness of the Social Partners to establish a general framework for ensuring equal treatment for

fixed-term workers by protecting them against discrimination and for using fixed-term employment contracts on a basis

acceptable to employers and workers.

This agreement applies to fixed-term workers with the exception of those placed by a temporary work agency at the

disposition of a user enterprise. It is the intention of the parties to consider the need for a similar agreement relating to

temporary agency work.

This agreement relates to the employment conditions of fixed-term workers, recognising that matters relating to statutory

social security are for decision by the Member States. In this respect the Social Partners note the Employment Declaration

of the Dublin European Council in 1996 which emphasised inter alia, the need to develop more employment-friendly

social security systems by ‘developing social protection systems capable of adapting to new patterns of work and

providing appropriate protection to those engaged in such work’. The parties to this agreement reiterate the view

expressed in the 1997 part-time agreement that Member States should give effect to this Declaration without delay.

In addition, it is also recognised that innovations in occupational social protection systems are necessary in order to adapt

them to current conditions, and in particular to provide for the transferability of rights.

The ETUC, UNICE and CEEP request the Commission to submit this framework agreement to the Council for a decision

making these requirements binding in the Member States which are party to the Agreement on social policy annexed to

the Protocol (No 14) on social policy annexed to the Treaty establishing the European Community.

The parties to this agreement ask the Commission, in its proposal to implement the agreement, to request Member States

to adopt the laws, regulations and administrative provisions necessary to comply with the Council Decision within two

years from its adoption or ensure (

) that the social partners establish the necessary measures by way of agreement by the

end of this period. Member States may, if necessary and following consultation with the social partners, and in order to

take account of particular difficulties or implementation by collective agreement have up to a maximum of one additional

year to comply with this provision.

The parties to this agreement request that the social partners are consulted prior to any legislative, regulatory or

administrative initiative taken by a Member State to conform to the present agreement.

Without prejudice to the role of national courts and the Court of Justice, the parties to this agreement request that any

matter relating to the interpretation of this agreement at European level should in the first instance be referred by the

Commission to them for an opinion.

General considerations

1. Having regard to the Agreement on social policy annexed to the Protocol (No 14) on social policy annexed to the

Treaty establishing the European Community, and in particular Article 3.4 and 4.2 thereof;

2. Whereas Article 4.2 of the Agreement on social policy provides that agreements concluded at Community level may

be implemented, at the joint request of the signatory parties, by a Council decision on a proposal from the

Commission;

(

) Within the meaning of Article 2.4 of the Agreement on social policy annexed to the Protocol (No 14) on social policy annexed to

the Treaty establishing the European Community.

Official Journal of the European Communities 10. 7. 1999L 175/46

3. Whereas, in its second consultation document on flexibility in working time and security for workers, the Commis-

sion announced its intention to propose a legally-binding Community measure;

4. Whereas in its opinion on the proposal for a Directive on part-time work, the European Parliament invited the

Commission to submit immediately proposals for directives on other forms of flexible work, such as fixed-term work

and temporary agency work;

5. Whereas in the conclusions of the extraordinary summit on employment adopted in Luxembourg, the European

Council invited the social partners to negotiate agreements to ‘modernise the organisation of work, including flexible

working arrangements, with the aim of making undertakings productive and competitive and achieving the required

balance between flexibility and security’;

6. Whereas employment contracts of an indefinite duration are the general form of employment relationships and

contribute to the quality of life of the workers concerned and improve performance;

7. Whereas the use of fixed-term employment contracts based on objective reasons is a way to prevent abuse;

8. Whereas fixed-term employment contracts are a feature of employment in certain sectors, occupations and activities

which can suit both employers and workers;

9. Whereas more than half of fixed-term workers in the European Union are women and this agreement can therefore

contribute to improving equality of opportunities between women and men;

10. Whereas this agreement refers back to Member States and social partners for the arrangements for the application of

its general principles, minimum requirements and provisions, in order to take account of the situation in each

Member State and the circumstances of particular sectors and occupations, including the activities of a seasonal

nature;

11. Whereas this agreement takes into consideration the need to improve social policy requirements, to enhance the

competitiveness of the Community economy and to avoid imposing administrative, financial and legal constraints in

a way which would hold back the creation and development of small and medium-sized undertakings;

12. Whereas the social partners are best placed to find solutions that correspond to the needs of both employers and

workers and shall therefore be given a special role in the implementation and application of this agreement.

THE SIGNATORY PARTIES HAVE AGREED THE FOLLOWING

Purpose (clause 1)

The purpose of this framework agreement is to:

(a) improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;

(b) establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or

relationships.

Scope (clause 2)

1. This agreement applies to fixed-term workers who have an employment contract or employment relationship as

defined in law, collective agreements or practice in each Member State.

2. Member States after consultation with the social partners and/or the social partners may provide that this agreement

does not apply to:

(a) initial vocational training relationships and apprenticeship schemes;

(b) employment contracts and relationships which have been concluded within the framework of a specific public or

publicly-supported training, integration and vocational retraining programme.

Definitions (clause 3)

1. For the purpose of this agreement the term ‘fixed-term worker’ means a person having an employment contract or

relationship entered into directly between an employer and a worker where the end of the employment contract or

relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the

occurrence of a specific event.

2. For the purpose of this agreement, the term ‘comparable permanent worker’ means a worker with an employment

contract or relationship of indefinite duration, in the same establishment, engaged in the same or similar work/occupa-

tion, due regard being given to qualifications/skills.

Where there is no comparable permanent worker in the same establishment, the comparison shall be made by

reference to the applicable collective agreement, or where there is no applicable collective agreement, in accordance

with national law, collective agreements or practice.

Official Journal of the European Communities10. 7. 1999 L 175/47

Principle of non-discrimination (clause 4)

1. In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than

comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is

justified on objective grounds.

2. Where appropriate, the principle of pro rata temporis shall apply.

3. The arrangements for the application of this clause shall be defined by the Member States after consultation with the

social partners and/or the social partners, having regard to Community law and national law, collective agreements and

practice.

4. Period-of service qualifications relating to particular conditions of employment shall be the same for fixed-term

workers as for permanent workers except where different length-of service qualifications are justified on objective

grounds.

Measures to prevent abuse (clause 5)

1. To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States,

after consultation with social partners in accordance with national law, collective agreements or practice, and/or the

social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which

takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:

(a) objective reasons justifying the renewal of such contracts or relationships;

(b) the maximum total duration of successive fixed-term employment contracts or relationships;

2. Member States after consultation with the social partners and/or the social partners shall, where appropriate, determine

under what conditions fixed-term employment contracts or relationships:

(a) shall be regarded as ‘successive’

(b) shall be deemed to be contracts or relationships of indefinite duration.

Information and employment opportunities (clause 6)

1. Employers shall inform fixed-term workers about vacancies which become available in the undertaking or establish-

ment to ensure that they have the same opportunity to secure permanent positions as other workers. Such information

may be provided by way of a general announcement at a suitable place in the undertaking or establishment.

2. As far as possible, employers should facilitate access by fixed-term workers to appropriate training opportunities to

enhance their skills, career development and occupational mobility.

Information and consultation (clause 7)

1. Fixed-term workers shall be taken into consideration in calculating the threshold above which workers' representative

bodies provided for in national and Community law may be constituted in the undertaking as required by national

provisions.

2. The arrangements for the application of clause 7.1 shall be defined by Member States after consultation with the social

partners and/or the social partners in accordance with national law, collective agreements or practice and having

regard to clause 4.1.

3. As far as possible, employers should give consideration to the provision of appropriate information to existing

workers' representative bodies about fixed-term work in the undertaking.

Provisions on implementation (clause 8)

1. Member States and/or the social partners can maintain or introduce more favourable provisions for workers than set

out in this agreement.

2. This agreement shall be without prejudice to any more specific Community provisions, and in particular Community

provisions concerning equal treatment or opportunities for men and women.

3. Implementation of this agreement shall not constitute valid grounds for reducing the general level of protection

afforded to workers in the field of the agreement.

4. The present agreement does not prejudice the right of the social partners to conclude at the appropriate level,

including European level, agreements adapting and/or complementing the provisions of this agreement in a manner

which will take note of the specific needs of the social partners concerned.

Official Journal of the European Communities 10. 7. 1999L 175/48

5. The prevention and settlement of disputes and grievances arising from the application of this agreement shall be dealt

with in accordance with national law, collective agreements and practice.

6. The signatory parties shall review the application of this agreement five years after the date of the Council decision if

requested by one of the parties to this agreement.

Fritz VERZETNITSCH

President of the ETUC

Georges JACOBS

President of UNICE

Antonio CASTELLANO AUYANET

President of CEEP

Emilio GABAGLIO.

General-Secretary of the ETUC

Dirk F. HUDIG

Secretary-General of UNICE

Jytte FREDENSBORG

Secretary-General of CEEP

18 March 1999